MACDOUGAL & BENSON

[2013] FamCA 349

FAMILY COURT OF AUSTRALIA

MACDOUGAL & BENSON [2013] FamCA 349

FAMILY LAW – PROPERTY – Transfer of property

FAMILY LAW – CHILDREN – Parental responsibility – With whom the children spend time with

APPLICANT: Mr MacDougal

RESPONDENT: Ms Benson

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 1674 of 2013

DATE DELIVERED: 9 May 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 9 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Treyvaud

SOLICITOR FOR THE APPLICANT: Forte Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Lennon

SOLICITOR FOR THE RESPONDENT: Lennon Mazzeo

Orders

BY THE COURT

1. That by midday 10 May 2013 the Wife shall transfer from the following accounts in the names of the children, she being the trustee of such accounts all of the funds held in the:

   (a)CBA account …64 in the name of M Benson (balance as at 2 April 2013 the sum of $4,769.75);

   (b)CBA account …05 in the name of S Benson (balance as at 2 April 2013 being $4,651.35)

   to Forte Family Lawyers Trust Account being CBA Bank … account number … to be applied to discharge the debt (including costs and interest) to the Owners Corporation of the Suburb B property.

2. The Wife forthwith sell all the Telstra shares in the names of the 3 children S, C and M, she being trustee of the children and the proceeds of sale shall be paid into the same trust account as in paragraph 1 herein, to be applied as follows:

   (a)To pay the next body corporate levy due on the Suburb B property being a sum of approximately $500

(b)Pay instalments to the Westpac and Commonwealth Bank in relation to the Range Rover and Mercedes registered in the name of EE pending sale of the cars.

(c)Any balance to contribute to the residue owed to each of Westpac and Commonwealth Bank in relation to the vehicle leases.

BY CONSENT

1. The Wife do all such acts and things necessary to:

   (a)By 4pm, Monday 13 June 2013, deliver up to the Husband at 9 D Street, Suburb F, the Range Rover motor vehicle registration number …, and do all things necessary to enable the Husband to sell the Range Rover forthwith with the proceeds of sale to be applied as follows:

   (i)     Firstly, to discharge the Westpac Vehicle Finance Lease;

   (ii)    Secondly, to reimburse the Husband in the event that he has incurred any reasonably necessary repair, roadworthy, commission, advertising, transport costs or other expenses in relation to the sale, and the Husband shall account to the Wife therefore.

   (b)Enable the husband to sell the Mercedes motor vehicle registration number … forthwith, with the proceeds of sale to be applied as follows:

   (i)     Firstly, to discharge the Commonwealth Bank Equipment Finance Lease;

   (ii)    Secondly, to reimburse the Husband in the event that he has incurred any reasonably necessary commission, advertising, transport costs or other expenses in relation to the sale, and the Husband shall account to the Wife therefore.

   (c)Within 7 days of the date of these Orders, make the Suburb G and Suburb H properties available at times to be nominated by the Husband or no less than 48 hours' notice, for the Husband to attend the properties in the company of a police officer to collect the chattels listed in Schedule A to the Orders of 8 March 2013.

2. Within 10 days of the date of these Orders the Wife provide full disclosure, in accordance with her obligations pursuant to rule 13.01 of the Family Law Rules 2004, including but not limited to a complete response to the letter from Forte Family Lawyers to Blackwood Family Lawyers dated 9 April 2013 and marked as schedule "A" to these orders and the Husband do provide such full and frank disclosure on his own accord, subject to the Wife's compliance with the request in the letter of 9 April 2013 (for the return of his documents to him)

By the Court

1. Within 24 hours after the payment by or on behalf of the Wife of any money to any solicitor on her behalf the Wife cause to be given to the Husband's solicitors, a memorandum stating the amount or amounts so paid to the solicitors.

By Consent

1. That the question of the categorisation of any payments made pursuant to these Orders shall be matters for determination by the trial judge.

2. All extant applications be adjourned to 5 June 2013 to the Judicial Duty List at 10am.

3. The Husband have leave to file an application to join the wife's parents, her brother(s) and any corporate entity as he may be advised, prior to the adjourned date.

4. The Wife provide to the Husband's solicitors within 7 days, the originals of the annexures to the Wife's two Affidavits, such annexures to be returned within 14 days.

5. Leave be granted to the husband to seek the matter be relisted as a matter of urgency in the Court the wife joins to comply with paragraphs 1 and 2 of these orders.

Children

BY CONSENT

1. Until further Order the parties have equal shared parental responsibility for the children:

   (a)S;

   (b)C;

   (c)M.

2. Until further Order the children live with the Wife.

BY CONSENT

1. Until further Order the children spend time with the Husband as follows:

   (a)From each Sunday from 12 noon to 5pm, commencing from Sunday 19 May 2013;

   (b)The Husband's mother Ms J be in attendance during the time the children spend with their father;

   (c)At other additional times as agreed in writing.

BY CONSENT

1. For the purposes of paragraph 13, changeover is to take place at the MacDonald's Restaurant at the corner of I Street and K Street at Suburb L.

NOT BY CONSENT

1. Until further Order, the parties and the children attend therapeutic counselling with Ms N, as directed by Ms N, the Wife to be responsible for all fees.

BY CONSENT

1. The Husband and Wife, their servants and agents be restrained from:

   (a)Denigrating the other party or their respective families in the presence or hearing of the children;

   (b)Discussing with the children any issues in these proceedings or any matter relevant to the parties' family law dispute;

   (c)Showing or allowing the children to view any documents relating to these proceedings or any matter relevant to the parties' family law dispute;

   (d)Taking the children to any psychologist, psychiatrist or counsellors other than as recommended by Ms N.

2. The parties each, as soon as practicable, enrol in prior to 5 June 2013 and complete a post separation parenting course, such course to be completed as soon as is practicable.

3. Each of the parties be and are hereby restrained from administering any physical chastisement or verbal abuse to any of the children.

4. Each of the parties be and are hereby restrained by injunction from being under the influence of any illicit drug or substance while the children are in their care pursuant to these Orders.

NOT BY CONSENT

1. Until further orders the Wife, by her servants and agents be and are hereby restrained from using any surname for the children other than "[MacDougal]".

Other

1. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

NOT BY CONSENT

1. The Wife forthwith pay the Husband's costs of 23 April 2013 fixed at $3406.05.

IT IS NOTED that publication of this judgment by this Court under the pseudonym MacDougal & Benson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1674 of 2013

Mr MacDougal

Applicant

And

Ms Benson

Respondent

REASONS FOR JUDGMENT

1. I am going to order costs of one day.  I have made it clear that I do not consider it fair or proper to order costs of two days. 

2. Costs are a discretionary matter under s 117 of the Family Law Act. 

3. I am satisfied that the progress in getting a determination at the interim stage today is something that was denied the husband in his application when the matter was before the Court last time.  It was clear from the way the proceedings went ahead that day that I was told on a number of occasions early in the day and then part way through the day that the matter had resolved, and then subsequently there was no agreement at all.  The whole day was lost.  It necessitated the parties to come back today. 

4. There was obviously a great deal of angst in it from the husband’s point of view that day – that should be very clear from the transcript – because the matter was urgent, and suddenly, it could not proceed to any conclusion as the day was lost.

5. The wife in the meantime has changed lawyers. 

6. I am not satisfied that I should proceed on the basis that the wife has a parlous financial position and that therefore no costs order should be made.  She clearly has paid very substantial sums, to both her new lawyer and her old lawyer, since the matter was last in court. 

7. She has also paid very substantial sums to her family, both before restraining orders that were designed to preclude that, and since.  I am satisfied that there is enough concern about her conduct in that regard that I should weigh that in the balance on costs, and I am also satisfied that in some fundamental ways she has been unsuccessful today, which I also weigh in the consideration.

8. So far as counsel’s fees are concerned, I am going to order the sum $2,024.05.  And I am going to order the solicitor’s costs of $1,382.  I am not going to order the costs of the transcript, because it was a luxury, not absolutely a necessity.  And I am not going to order the costs for draft orders.  Again, that might have been nice, but not a necessity.  That is a total of $3,406.05. 

9. I am not going to order a stay until the end of the proceedings in the circumstances that I have outlined, where the wife has managed to pay her own lawyers, both past and present.  I will add an order, number 22.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 9 May 2013.

Associate: 

Date:  9 May 2013